Morrison v. Davis & Co.

• Decision Date: 24 March 1853
• Citation: 20 Pa. 171
• Parties: Morrison v. Davis and Company.
• Court: Pennsylvania Supreme Court

20 Pa. 171

Morrison v. Davis and Company.

Supreme Court of Pennsylvania.

March 24, 1853

1852

1. Carriers are answerable for the ordinary and proximate consequences of their negligence, and not for those which are remote and extraordinary.

2. Goods carried in a canal-boat on the Pennsylvania Canal, were injured by the wrecking of the boat, caused by an extraordinary flood; held, that the carriers were not rendered liable merely by the fact that when the boat was started on its voyage, one of the horses attached to it was lame, and that in consequence thereof, such delay occurred as prevented the boat from passing the place where the accident happened beyond which place it would have been safe.

3. The exception clause as to inevitable accidents is implied by law in favor of common carriers where it is not expressed in the bill of lading.

4. Such implication may, however, be repelled by parol evidence showing that the carriers agreed to insure the safe delivery of the goods without any exception for inevitable accident.

5. Where carriers have advertised favourable terms of transportation as a means of acquiring custom, it is proper to presume that their customers have been induced by them and it is not necessary, in a suit against them by the owner of the goods, for the plaintiff to prove that he came to a knowledge of the terms before he delivered his goods for carriage.

ERROR to the District Court of Allegheny county.

This was an action of assumpsit by James Morrison v James M. Davis & John McFadden, partners, under the name of Davis & Co., and owners of the " " Reliance Portable Boat Line," to recover damages for the loss of merchandise shipped in Philadelphia to be delivered in Pittsburgh.

The declaration contained five counts, 1. Charging the defendants as common carriers in the usual form.

2. Charging them as common carriers, and averring that they undertook and promised to take care of and safely and securely carry and convey the goods, & c., and deliver the same to the plaintiffs at the city of Pittsburgh, without any exception.

3. Averring that the defendants " undertook, and faithfully promised the said plaintiffs to guaranty the safe delivery of the said goods, wares, merchandise, and chattels for the said plaintiff at Pittsburgh, in the county aforesaid, without exception."

4. That said defendants " undertook, and faithfully promised the said plaintiffs to insure the safe delivery of the said goods, wares, merchandise, and chattels for the said plaintiff, at Pittsburgh, in the county aforesaid."

5. That they " undertook and faithfully promised the said plaintiffs to insure the said last-mentioned goods, wares merchandise, and chattels, and to be and become the insurers thereof from the city of Philadelphia aforesaid to the city of Pittsburgh, in the county aforesaid; and in case of the loss of the said goods, wares, merchandise, and chattels, or any part thereof, or of damage or injury to the same, or of any part thereof, during the carriage, transportation, and conveyance and delivery thereof, by the said defendants, to be responsible therefor to the said plaintiff, and liable for the value thereof."

The defendants plead non assumpsit.

The death of James M. Davis was suggested, and the jury were sworn as to John McFadden, the survivor.

On the part of the plaintiff was given in evidence the bill of lading, as follows:--

RELIANCE PORTABLE BOAT LINE.

JAMES M. DAVIS, No. 249 and 251 Market Street, Philada.

JOHN MCFADDEN & Co., Canal Basin, Pittsburgh.

Philadelphia, Oct. 1, 1847.

Received and collected the following packages, in apparent good order marked as per margin, which we promise to deliver in like order to John McFadden & Co., on presenting this receipt and payment of freight, at our warehouse in Pittsburgh, within eight days (Sundays excepted), unless unavoidably detained, of which affidavit of captain shall be evidence, at the following rates per 100 pounds.

Railroad time, eight days.

(Then followed rates of freight and enumeration of packages.)

JAMES M. DAVIS & Co.,

By JOHN M. CRAIG.

It was admitted that the damage done amounted to $717.92.

The plaintiff then offered, in support of the 3d, 4th, and 5th counts, to prove by depositions, and by oral testimony, that the defendants held themselves out to the public, by advertisements in the newspapers, and by circulars sent to their customers, as insurers, and as guarantying the safe delivery of all goods carried by them, without exception; and that one of their circulars was delivered to a customer by the defendants in the presence of the plaintiff, at the time he contracted for the carrying of the goods; and also what were the declarations of the defendants at that and other times in relation to their liabilities as insurers, and particularly, that when one of the deponents asked as to his own goods, " what about the insurance?" the defendants handed him a circular; that the plaintiff was present at the time, being at the same time that the plaintiff was shipping his goods; and also to show that the plaintiff before that time had other goods forwarded by the defendants, and that they had then held themselves out to him as insurers.

To this offer the defendants objected, because, 1. The defendant is bound only according to the written contract.

2. The advertisements and circulars never came to the plaintiff's knowledge.

The Court sustained the objection on the first ground, to which the plaintiff's counsel excepted.

The plaintiff then offered to prove, in addition to the above offer, that he paid a higher rate of freight in consideration of the agreement to guaranty the safe delivery of said goods.

Objected to by defendant's counsel; objection sustained, and the plaintiff's counsel excepted.

The defendant's counsel then read in evidence sundry depositions, tending to show that the injury arose from an inevitable accident, to wit: from an extraordinary flood in the Juniata Division of the Pennsylvania Canal, and among them, depositions of the boat's crew, especially tending to show that when the boat started on its voyage, one of the horses had by an accident become lame, and that, by reason thereof, great delay was occasioned in making the voyage, without which the goods would have arrived in safety.

The plaintiff's counsel then read in evidence sundry depositions, tending to show that, notwithstanding the flood, the injury could, by proper care, have been avoided; and also gave other evidence, tending to show that the defendant's boat, at the time of the disaster, had not made the usual progress, nor accomplished so much of the voyage as other boats starting at the same time and subsequently; and that said boat could not have reached her point of destination within the time limited in the bill of lading.

Various points were submitted on the part of the plaintiff, which the Court declined to answer further than they were answered in the general charge.

For the material points in the case, see the opinion delivered by LOWRIE, J., in this Court.

Error was assigned to the rejection of the evidence mentioned in the two bills of exception.

Also to the refusal to answer the points specifically and fully; and to the charge, as follows:--

6. The Court erred in that part of the charge having reference to the effect which the delay caused by the lame horse of the defendant had upon the excuse of the carrier; and in instructing the jury in effect " that the law does not transfer the fault of starting on the voyage with insufficient horse power, so as to make it an element in testing the inevitableness of the disaster at Piper's dam."

7. The Court erred in charging the jury that common carriers " are only answerable for the ordinary and proximate consequences of their negligence, and not for those which are remote and extraordinary." And in charging that the ordinary consequence of the fault charged in this case is the loss of time, and the penalty is measured accordingly, even though a conjuncture of other extraordinary circumstances has greatly increased the extent of the injury.

8. The Court erred in charging that, " where a carrier is guilty of delay in transporting goods, his liability is to pay for the delay. This liability is not changed by the subsequent destruction of the goods...